Australian nurse in surrogacy case pleads for release, with defence that acts occurred in legal void

Australian nurse Tammy Davis-Charles broke down in tears yesterday as she appealed to the Phnom Penh Municipal Court judge to dismiss the charges against her during the last hearing of Cambodia’s landmark surrogacy trial.

Davis-Charles, the founder of Fertility Solutions PGD, has been incarcerated in Prey Sar with her co-accused, nurse Samrith Chakriya, and Commerce Ministry employee Penh Rithy, for the past eight months. She told the court her health had suffered since she was arrested, saying she had lost more than 20 kilograms and her eyesight had deteriorated badly due to cancer in her left eye.

“I have not seen my twin boys,” she said, sobbing. “I wish the court to open their eyes to see what I have really done,” she continued in a scarcely audible voice.

Health Minister Mam Bunheng banned the practice of surrogacy in October last year, but a law regulating the industry is still being drafted, meaning surrogacy agents have been operating in a legal vacuum.

The trio stand accused of being intermediaries between an adoptive parent and a pregnant woman, and fraudulently obtaining documents such as birth certificates. Those charges carry maximum sentences of six months and two years, respectively.

Their defence lawyers yesterday pointed to the legal void, saying that the majority of their clients’ work was carried out before the October ban and that they should not be put on trial retroactively.

Chakriya also made a tearful plea for release, saying she had not worked for Davis-Charles since July last year, as she had taken time off to give birth to her daughter, who was 4 months old when she was arrested.

“I did not know that there is a law on this, and I stopped working for them ... I was just a servant,” she said.

“I think my reputation is gone now since I have been in jail,” she said, adding she would lose her job at Sihanouk Hospital if she could not return to work by August 15.

Chakriya and Davis-Charles comforted each other as they said their last words before the court, while Rithy, who allegedly found surrogates and arranged birth certificates, made a short final statement.

“The women came voluntarily, I did not persuade them,” he said.

Davis-Charles was asked if she had advertised surrogacy services on her private Facebook page, which she emphatically denied, saying pictures were of her twin boys, who were born through surrogacy.

“It’s about my own twins, my own boys born six years ago... it’s us going to the park and eating and playing,” she said exasperatedly.

The court also questioned the role of Sy Management, which Davis-Charles said was headed by Australian man Sun Hien Ly, in screening surrogates and assessing parents, as well as organising birth certificates and exit visas for newborns.

“The parents have to tick the right boxes, like criminal checks, in order to use the facilities [at Fertility Clinic of Cambodia, or FCC],” Davis-Charles said, referring to a centre where in vitro fertilisation took place.

“Originally it was New Genetics [Global], but they charged $6,000 and parents got really angry, so the FCC decided to use Sy Management.”

She maintained that a contract the court alleged showed her central role in the process was actually an agreement between the intended parents and the surrogate, which she had merely signed as a witness. Her role, she said, was to provide healthcare and ensure surrogates were properly paid. Parents would transfer money to her, which she would then transfer in instalments to the surrogates.

She estimated 30 percent of women who approached FCC to become surrogate mothers were able to bear a child to term. Of the 23 mothers she had worked with in Cambodia, one miscarried, she said.

Davis-Charles claimed Chakriya was primarily a nurse and translator and thus would have little knowledge of the intricacies of the surrogacy industry, while Rithy and another alleged broker named Savoeun simply followed instructions from Hien Ly at Sy Management.

Davis-Charles’ lawyer Chheang Sophorn maintained his client’s innocence, saying it was Sy Management and FCC who initiated the surrogacy process and that she had no role in recruiting mothers.

“She was only a nurse at FCC … there is no evidence she was an intermediary,” he said.

Rithy’s defence lawyer, Ouk Vandeth, asked Davis-Charles if there was any blood tie between the surrogate and the baby, clarifying that in Cambodia there is a “relationship that cannot be broken” between birth mother and child.

“There’s a DNA test that proves that there is no blood relationship at all ... Science is amazing,” Davis-Charles said.

Vandeth then argued that there should be no law against surrogacy.

“A prohibition on international surrogacy should not be applied to Cambodia now, because people are poor,” he said.

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